Decision Date: 26 February 2025
Summary
Mr X complained about being charged for home care services, having contended that he could not afford it.
What happened
Mr X complained about being charged £75.11 weekly for home care, having said that he could not afford it.
The Council responded that the charge was based on a financial assessment, which has been explained to Mr X several times, and that it was his choice whether to continue receiving the care.
What was found
The Ombudsman declined to further investigate Mr X’s complaint against Hillingdon because the complaint did not meet the test in the Assessment Code for determining which complaints merit investigation.
The Ombudsman’s triage team decided it was unlikely it would find fault with the Council’s actions taken, after applying its charging policy and financially assessing Mr X.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Local Government and Social Care Ombudsman (LGSCO) does not act as a court, cannot overturn council decisions simply because they are unpopular or cause hardship, and focuses narrowly on whether there has been an identifiable administrative fault.
In Mr X’s complaint against Hillingdon, the Ombudsman declined to investigate further after finding the Council had completed a financial assessment, calculated the charge lawfully, and explained the outcome to Mr X. Procedural compliance was enough to close the case.
This decision reflects the Ombudsman’s consistent approach: where councils can show they have followed the law and adhered to set procedures, the Ombudsman generally will not find fault, even if the individual outcomes are harsh or inequitable. The Ombudsman’s role is to check processes, not to re-make decisions that could appear to be providing access to an appeal body.
It is critical to recognise that the Ombudsman holds councils to account in a procedural sense ie checking whether councils have followed the law rather than second guessing the substance of the decision made.
However, community care and charging law under the Care Act 2014 place councils under a broader legal duty not merely to comply procedurally, but to act in a way that promotes individual wellbeing including social and economic wellbeing.
All charging is a discretion, now, and thus we are surprised that the Ombudsman’s service does not think it worthwhile telling the public about the extent to which this Council bothered to consider the evidence on affordability in light of all relevant financial obligations of Mr X.
A validly conducted financial assessment does not automatically discharge the Council’s wider responsibility to exercise discretion – to ensure that service users are not or are not forced into unsustainable financial situations. This is called an affordability review, and is required by the Guidance itself, which Councils are bound to act under by the Care Act itself. This duty means (according to case law) that departure from the Guidance can happen, but only if a very good reason for doing so is articulated. Readers are left in the dark here, as to what that might have been.
In Mr X’s case, while there was sympathy for his financial concerns, the Ombudsman treated the issue as resolved by the existence of a valid financial assessment and the offer of choice to accept or decline services.
That is not in fact a choice that the Council is permitted to offer people. The ability to charge and enforce charging law is not one side of the coin, the other side being the delivery of services. The primary duty is the meeting of eligible unmet needs, regardless of whether someone wants to pay, agrees to pay or is afraid of debt. A capacitous person has the right to refuse services, for whatever reason but if a large number of people were to do this, the elected Members in whose name the charging policy is made, would presumably want to know that it was driving people out of the receipt of services, and possibly to a reconsideration of the policy?
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Hillingdon (24 016 334) report.
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